Varitimos v Queensland Electricity Commission
[1991] QLC 13
•20 June 1991
|
BRISBANE
20th June, 1991
Re: Claim for Compensation -
A89-10.
Anastasis Varitimos
v.
Queensland Electricity CommissionJ U D G M E N T
Anastasis Varitimos is the registered proprietor of an estate in fee simple in the land described as Lot 11 on Registered Plan 136932, county of Stanley, parish of Tingalpa, containing an area of 3.22 hectares and being the whole of the land contained in Certificate of Title, Volume 5107, Folio 167. It has an angled frontage of 104 metres to Lindum Road, Lytton, a depth of 306.7 metres on its western boundary, a depth of 347.96 metres on the eastern boundary and a mean width of 97.9 metres.
Lindum Road is a bitumen sealed secondary road with gravel shoulders without kerbing or channelling. The subject land is situated about 15 kilometres north-east of the General Post Office, Brisbane, 650 metres east of Lytton Road and about 500 metres west of Lindum Railway Station. The Lytton area caters for manufacturing and industrial storage with an established harbour industry. It supports heavy cargo movement by sea, rail and road, being located near the Fisherman Island wharf complex. All normal city services are available.
The subject land is low-lying, being below the 2-metre contour. It was totally inundated in both the local flooding of 1967 which reached 3.09 metres and the Brisbane flood of 1974 which reached 2.58 metres AHD. Any development will require filling varying from 1 to 1.5 metres in depth. There is a dwelling house and incidental other improvements which do not add value to the land.
The low-lying nature of the lands in this locality and the need to control inundation to enable the lands to be developed has attracted the attention of the Brisbane City Council which has prepared a Rivermouth Development Control Plan making provision for a future drainage network along the Bulimba Creek catchment. The general intention is for drainage works to be done to channel water into an overland flow path. This flow path generally follows property boundaries. So far as the subject land is concerned, there is a regulation line with a width of 30 metres along the eastern boundary of the subject land to be shared equally with the neighbouring properties (Exhibit 11). All applications for development are subject to the requirements of that Plan.
By notice dated 2nd October, 1985, the Queensland Electricity Commission advised of the intention to resume an easement for Electrical Works purposes over the subject land. The path of this easement bisected the subject land. By notice dated 3rd December, 1986, the respondent Commission discontinued this resumption.
Another notice of intention to resume issued on 3rd December, 1986, and by notice published in the Government Gazette 13th June, 1987, the respondent took, under the provisions of the Acquisition of Land Act 1962-1986, Easement A in Lot 11 on Registered Plan 136932 on Plan 194588, being a plan intended for registration in the Office of the Registrar of Titles, Brisbane, containing an area of 7238 square metres. The easement was taken for Electrical Works purposes. This easement is over land along the greater part of the eastern boundary of the subject land with a width of 30 metres and a depth of 262 metres. The regulation line previously referred to is within the area taken by the easement. Two steel towers have been erected - one near the road frontage and the other towards the rear of the easement.
On 16th February, 1989, the solicitor for the respondent made application to the Land Court for an Order pursuant to Section 25 of the Acquisition of Land Act for the claimant to enter an appearance in respect of a claim for compensation payable consequent upon the resumption. An Order issued on 2nd March, 1989, for an appearance on or before 2nd May, 1989, by filing a claim for compensation in accordance with the requirements of Section 19 of the Act. A claim was lodged on 2nd May, 1989, in the sum of $120,000 for land with "Nil" amount recorded for improvements, severance and injurious affection. The matter came on for hearing on 23rd October, 1989, when by consent the hearing was adjourned until 4th December, 1989.
Evidence for the claimant was given by valuer, Mr D.L. Corbett who received his instructions to undertake the valuation a short time before the date of hearing. In his report he says that he inspected the subject land on 26th November, 1989. His valuation values the land as at 3rd December, 1986, which is the date of the notice of intention to resume and not 13th June, 1987, which was the date of taking but in his evidence he says that he does not consider there would be any variation in value between those dates.
In his written valuation, Mr Corbett sets out matters which have been taken into consideration by him in this exercise:
"Easement A, area 7238 square metres has been located along the eastern alignment for a total length of about 262 metres and it has a width of 30 metres.
The Queensland Electricity Commission has taken the land, constructed an access track, erected 2 towers and completed the transmission lines. The towers are more or less centrally placed within the easement, the northernmost being more substantial as it is placed at a change of direction of the transmission lines.
The towers stand on pads, about 1 metre high and the access road is on the western edge of the easement.
General Comments
We have attached to this report maps showing the disposition of Q.E.C. easements and the B.C.C. Regulation Line for the area drainage.
It may be noted that the Regulation Line in so far as it refers to Lot 11, lies within the confines of the Q.E.C. easement, extending over 50% of the resumed area. It should be stressed that the Regulation Line is an interim design only and may be relocated as necessary.
The interim Regulation Line endorsed on Lot 11 follows the eastern alignment and therefore falls within the Q.E.C. easement.
The Regulation Line is intended to be 15 metres in width (Q.E.C. easement 30 metres) and it would become a drainage easement upon issue of building approval or consent to place filling upon the land.
As no approvals have issued from the Brisbane City Council the drainage easement has not been created.
The Q.E.C. works have been completed for some time, that is
- Pylons have been erected
- Access road
The pylons have been erected upon pads about 1 metre above natural ground level whilst the roadway, constructed in hard core road base is some 400 mm above natural ground.
Drainage plans have apparently been completed for Lot 18 on RP 213402 where an easement to the council is now in place.
To some extent this easement and the position of the pylons and access road have more or less committed the route that the future drainage easement to accept flow from that easement on Lot 18 will follow.
The base pad to the northern pylon has effectively blocked the Regulation Line intended for Lot 11. That pad, plus the access road adjacent to the pylons would require twists and bends within the flow path and that does not appear to be sound engineering practice.
To overcome design problems the future drainage easement must move to the western side of the access road, thereby further reducing the land available for development.
As the land would be used for industrial purposes the existence of the service access road must also receive consideration.
Under usual conditions an industrialist would secure his property by means of security fencing. The existence of the roadway could mean that the easement boundary, or at least to the western limits of the roadway, will be fenced, rendering useless the land to about 70% of the power easement. "
Mr Corbett then makes reference to three sales. The first is a sale of Lot 15 on RP 33281 containing 1.113 hectares on 8th September, 1986, for $160,000 ($14.37 per square metre). This parcel joins the eastern boundary of the subject land and was purchased by the respondent Commission. It is zoned "Warehouse and Transport" and other than being smaller in area he considers it comparable to the subject. The next sale he refers to is the sale of Subdivision 4 of Portion 26, parish of Tingalpa, containing 2.031 hectares which sold on 20th July, 1987, for $300,000 ($14.77 per square metre). This is located at 94 Gosport Street, Hemmant, which street meets Lindum Road at its western end. His third sale is the sale of an easement over 1,889 square metres of Lot 7 on RP 136933 on 23rd October, 1986, for $16,500 ($8.73 per square metre). He says that this sum is the compensation paid by the respondent Commission for the easement. The servient tenement is a triangular shaped parcel with the easement located at its eastern apex. It has an extensive frontage to Lindum Road, but is inferior land to subject. The B.C.C. Regulation Line passes through the land and within the easement. The Regulation Line has a width of 30 metres within the easement plus allowance for a further easement 4 metres in width along alignment of the land.
In his evidence-in-chief, Mr Corbett says that the price per square metre paid for sales 1 and 2 are almost at the same rate per square metre and that in the eyes of the market the two would be fairly comparable but in the result he has not used these sales as a basis of valuation. His actual approach is to arrive at a value by a somewhat complicated process which he expresses in his written valuation in the following words:
"Valuation Considerations.
We have been supplied with a valuation prepared by Messrs A.D. Taylor, P.G. Byrne & Co., Valuers for the Queensland Electricity Commission in assessment of the level of compensation.
The Valuer has proceeded on the premise that as the BCC Regulation Line for a future drainage easement is contained within the resumed area compensation to be offered should be reduced by 50%.
We have demonstrated above, the problems such a drainage plan would encounter and as the published Regulation Line is an interim proposal only it could be varied according to conditions actually prevailing, after design criteria have been followed.
During our inspection it was noted that the access road to service, not only the pylons on this easement, but also adjoining lands did not follow the easement, but continued to northern alignment.
The need for quick and ready access to the pylons in periods of heavy cyclonic or storm rains is obvious and further demonstrated by the roadway being constructed well away from any drainage easements.
Sale No 3, Q.E.C. Easement, using the logic expressed in the A.D. Taylor, P.G. Byrne & Co. valuation can be further analysed as:
Area : 1889 square metres
Compensation : $ 16,500
= $ 8.73 per square metre
As the Regulation Line crosses the land concurrently with the power line we could determine land value as :
Compensation : $ 8.73 per square metre
being 40% of adopted rate, which is $ 21.82 per square metre.
The resumed area left an area of about 500 square metres at the apex of the triangle which the Valuer may have decided should also receive some recognition.
Therefore using that argument the land value is determined at :
Compensation : $ 16,500
Total area
affected : 2400 square metres
= $ 6.87 per square metre
being 40% of adopted rate = $17.18 per square metre.
The position of the southern tower has a detrimental effect upon the land, reducing as it does the effective frontage of the land, making the frontage to depth ratio less desirable and for this we have made an allowance of $10,000.
Valuation
7238 square metres @ $17 per square metre $123 046
Plus effect of towers and access road
upon the land $ 10 000
$133 046 "
Mr Corbett says that the valuation which he refers to had been prepared several years ago on behalf of the respondent and he believes that the same approach would have been made in reaching a figure for the sale of Lot 7 owned by Mr Alexander. He makes the assumption that in paying $16,500 in settlement for taking an easement over Lot 7, the respondent would have adopted the same rate of 40% as was adopted in the valuation to which he refers. By this method he arrives at his conclusion that the subject Lot 11 carries a value of $17 per square metre. He is of opinion that no discount should be made because of the existence of the Regulation Line as he believes that a purchaser would look favourably on the area enclosed in the Regulation Line as it would assist in disposal of water from buildings erected upon the site. He makes an allowance for the effects of the towers and the access road upon the land. His approach is that when an industrial shed is placed upon the land it would be necessary to provide security by a 2-metre high man-proof fence. It would not be possible to fence the whole of the land here to include the access road as a key would have to be provided to the Commission for access through the gate on Lindum Road and security would be in jeopardy. His opinion is that the owner would have to fence on the western side of the access road, fencing off the easement completely. Apparently, the $10,000 is "possibly to take some cognizance of the position of the towers, the location of the access road and the difficulty of securing the land".
He comments on the valuation to be tendered to the Court by valuer, Mr K.G. Magee on behalf of the respondent. He disagrees with the statement in that valuation that 77.5% of the land was available for a building which was in excess of the permitted site coverage of 75% of the total area. He says that if the building was to be moved further to the western boundary to accommodate a building of the same scale, it would be a requirement that it have a fire-proof wall against that boundary and this would involve additional expense. In cross-examination he agrees that the cost of about $10 per cubic metre would be an appropriate allowance for cost of filling to bring the land to the required level and this would bring the land to a rate of $23 per square metre in a filled compacted condition or an overall figure of over $700,000. He cannot point to any sales in the area of the magnitude of this price. He acknowledges that access to the land for heavy vehicles, given the present physical formation of Lindum Road, would be difficult without work being done on the road reservation. He would expect that the developer would have to pay for the cost of works to gain suitable access as a condition of approval to its development.
Mr Corbett was questioned on his statement that a prudent purchaser of the land would see the proposed drainage easement in the Regulation Line as being advantageous to him but says that, if the Council acquired the easement under the provisions of the Act, he would advise the owner to seek compensation from the Council. He was questioned also on his expression of opinion that the pylons are an impediment to drainage flow within the Regulation Line but there is nothing to support his opinion in this matter. Much of the cross-examination is directed to matters which are of no real concern as Mr Corbett is of the opinion that the whole of the easement area is rendered useless and must be fenced out. He was questioned as to the location of the front tower within the easement and agrees that there is still some 95 metres of frontage to Lindum Road undisturbed and away from the pylon providing ample space to provide suitable ingress and egress.
Mr Corbett was asked questions on his opinion that the Lindum Road was a preferable address for industrial development to Gosport Street but agrees that, at the date of resumption, Lindum Road had no commercial or industrial development. He was taken through a description of the industrial buildings in Gosport Street. He agrees there are a number of such buildings and also an hotel. He says that Mr Varitimos had not discussed with him any difficulties on the positioning of his proposed building upon the land. He agrees that, while he makes mention of an access road having been built by the Commission outside the easement area, this road area could be developed at any time by the owner and it forms no part of his assessment of compensation. He was cross-examined on the sales used by Mr Magee but, in the result, there is little to disturb Mr Magee's opinion on superiority or inferiority of sites expressed in his valuation. He agrees that his valuation rests entirely on the purchase price paid by the respondent for the easement on the opposite side of Lindum Road. He does not know how the figure was arrived at and whether valuation fees or legal fees form part of the total payment.
The claimant, Mr Varitimos, gave evidence. He says that he has been a registered builder since 1972 and has experience in the construction of both houses and commercial and high-rise developments. His building work has been both on a contract basis for third parties and also on a speculative basis for his own projects. He says that he acquired the subject land in 1984 with a view to building warehouses for bulk storage. In a written statement he says that it had three major advantages from his point of view. It was land requiring fill and was thus less expensive than land which did not require fill. He had the advantage of being able to obtain cheap fill from his other building sites and he had had a good deal of experience in building on low-lying sites which have required fill. The next attraction was that there was to be a N.S.W. gauge train line to pass within 50 metres of the back boundary and he envisaged that access to a siding would be possible. The third attraction was that he was aware that the property was located along the regulated drainage system with open-type drains to carry surface or storm water for future development of the property in the way of filling and building which would save costs on draining.
He says that he prepared some building plans with a view to having a warehouse constructed on the land. In the preparation of the plans, all the general layouts and engineering works were completed by himself. The drawing of the plans was performed by David Clarke, a draftsman of Coorparoo, at a fee of $670.
In his written statement he says that on 2nd October, 1985, a notice of intention to resume was issued by the respondent which would have effectively bi-sected the block laterally. An objection was made and conferences held with officers of the Commission. In the result this proposed resumption was discontinued and steps then proceeded for acquiring the easement in the area it now occupies. He speaks of the works erected within the easement and claims that the existence of the stauncheons severely restricts the development which can be effected on the property and exacerbates the cost of development. He envisages difficulties in constructing a building because it would be difficult to operate cranes near the overhead lines. In his written statement he goes on to say:
"It was envisaged that the building which was to be built on the property was to be constructed of tilt up concrete panels. These are poured on site and then lifted into place with the use of a crane. The cheapest and most effective method of erecting the panels is to firstly pour the slab. Then pour the concrete tilt up panels on the slab. Then the crane would pass around the outside of the slab and lift the panels off the slab up into place. The advantage with this is that the panels can be poured on the slab. The crane however could not go around the outside of the building as this would be made impossible by the existence of the stauncheons. Therefore an alternative method would have to be used. This would be to have the panels poured and the crane lift the panels up effectively from the inside of the building. The disadvantage with this is that the crane is too heavy to be supported by the slab and therefore a false floor would have to be laid upon which the tilt up panels would be poured. The other difficulty with the alternative system is that it is necessary to tilt the panels and then brace them while the slab is then laid and the steel work is constructed. In the situation of the best method (pouring the panels on the slab) the steelwork can all be put in place before the panels are lifted. The panels are then bolted to the steelwork and the additional expense of bracing, etc., is avoided.
It is very difficult to prepare an accurate estimate of the extra building costs that would be incurred by virtue of the existence of the stauncheons. However it would seem to be very easy to imagine that extra costs of $30,000.00 to $40,000.00 would be incurred. A major disadvantage is a loss of time. The alternative method would be far more time consuming than the best method. The time taken in bracing the panels while the slab is poured is time completely lost. I consider that an estimate of the extra costs as follows:-
Extra costs of crane (extra 5 days
@ $3,000.00 per day) $15,000.00
Extra bracing for slabs $ 3,000.00
False slabs for pouring panels $10,000.00
Refixing slab after set in
position by crane $10,000.00
$38,000.00
"
He then sets out in his statement a number of matters relating to health risks with electro-magnetic fields, problems with two-way radios and his belief that the respondent Commission requires 24-hour access to the stauncheons and over the access to stauncheons on adjoining properties. He believes it would be impossible to secure the property with proper fencing and gates. He says that faced with all the problems he decided to sell the land and instructed the real-estate firm of Ray White, Tingalpa, to submit offers for the land. The best offer received was $250,000. The agent advised him that there was quite a deal of land available in the area and the majority of that land did not have the same difficulties envisaged with the subject land. He says that there has been a good deal of discussion about the effect of the regulated drainage line but he has always seen this as an advantage compared to an owner having to instal and maintain internal drainage. The subject land can be drained into the regulated drainage line with the costs of maintenance borne by the City Council. Mr Varitimos speculates that because of the existence of the stauncheons the Council would require 30 metres on the western side of the Commission easement and this would reduce his frontage by 30 metres and would render the block virtually useless.
In his evidence-in-chief, he speaks of the advantage of having a parcel of land on which to dump soil from other sites upon which he was working. He says that at present it costs him $4 per cubic metre to get rid of this excavated soil. He says he would have the work done by Dean Bros. at $2.50 per cubic metre and the spreading and compacting of the fill would have cost him about $1.50 per cubic metre as he owns his own earthmoving equipment. He also gave further details of how he has calculated the extra costs of constructing a building due to the existence of the power lines. He says that he lost interest in proceeding with the project when the respondent built the "dams across the drainage easement". He said he knew very well that once he negotiated with the Council concerning development of the land the Council would renegotiate the drainage easement and they would require the easement to extend further into his land as already mentioned.
He refers to the easement acquired on land opposite the subject land which easement has been mentioned and used by Mr Corbett in his valuation. Mr Varitimos says that this was owned by Mr Keith Alexander who informed him that he received $25,000 from the Commission for compensation of that land.
Upon completion of examination-in-chief, Counsel for the claimant sought and was granted leave to amend the claim here as follows:
Land $133,046
Injurious affection $ 38,000
Disturbance
Valuation Fees $1,500
Cost of drawing
plan $ 670
Legal fees $ 755.50 $ 2,925.50
$173,971.50
In cross-examination Mr Varitimos agreed that he had been involved, either directly or through his solicitor, in discussions with officers of the respondent Commission for at least the past three years or longer but never before has he expressed the view that there had been injurious affection because of increased building costs. He denies that this claim has only been conceived within the past few days but that some months ago it was under consideration. He acknowledges that the figures advanced in his statement were supplied to his solicitor three days before the commencement of the hearing notwithstanding the hearing had been adjourned previously. He says that over the period since resumption he had a valuer - Mr Hall, his own brother as his solicitor and also his present solicitor but no mention of any such claim has arisen before the hearing had commenced. He says he has never sought the approval of the Local Authority to dump fill upon the land. He says that it was his intention to make one application for consent to fill the land when building plans were submitted for approval as being the simplest and quickest way to do things. He acknowledges that the siting of the easement was changed to its present position at his request through his brother. He agrees that at the conferences no suggestion was made of difficulty with moving cranes nor any of the other problems he raises in his evidence. He agrees that he at that time had a plan for the construction of a warehouse drawn up for Jukinee Family Trust. The building had a frontage of about 68 metres and a depth of about 240 metres. He says that the $38,000 increase in cost was to put up the eastern wall. He does not agree that the same building can be accommodated upon the subject land within the 75% site coverage restrictions. He presents various difficulties, such as the need for a road on the western side, but agrees that his original plan makes no provision for access along that side but provides only for landscaping. He also expresses the belief that to move the property closer to the western boundary would necessitate construction of a fire-proof wall.
At this stage of the proceedings, Counsel for the respondent sought an adjournment on the grounds that the amendment of the claim to include the claim for injurious affection had only been advanced during the course of the hearing and it would be necessary to obtain expert opinion on the matters now raised by the claimant. The application was not opposed and the matter was adjourned to a date to be fixed. Mr Jones sought an Order from the Court for production of any plans or structure drawings of the proposed building in addition to the conceptual plan which had been tendered. I ruled I had no power to make the Order. Muldoon said he would seek instructions on the matter.
The matter came on again for hearing on 15th June, 1990. On the previous day, the solicitor for the respondent supplied the Court with a report of Mr I.D. Miller, consulting engineer, and another of Mr R. Baker of the Queensland Electricity Commission dealing with the matters raised by Mr Varitimos on difficulties of constructing his building. Counsel for the claimant stated that these reports were made available to the solicitors for the claimant on the afternoon of 13th June, 1990. He submitted that in fairness to the claimant it would be essential to have an expert peruse and advise on the contents of those reports. In the result, it was agreed by the parties that the cross-examination of Mr Varitimos could be completed and while the case for the claimant would not be closed, time could be usefully employed in hearing evidence from the witnesses for the respondent if their evidence was not connected to the question arising on the claim for injurious affection.
Mr Varitimos acknowledged that at the date of resumption there were no other warehouses in the area surrounding the subject land at Lindum Road or bond storage space of the size of the building contemplated by him nor has any such building been constructed since that date. He expresses opinions on the reports of Mr Miller and Mr Baker and the reasons for disagreeing with their conclusions. He says that if the building was moved to the western boundary there would be difficulties and extra expense in building the western wall of the building. He was cross-examined at length on his estimates of cost but I do not propose to cover that evidence other than to indicate that he disagrees with the various costs put to him by Mr Jones in cross-examination. He agrees that if it was permissible for him to work on any easement area with the power disconnected, it would take the danger out of using a crane but if it was possible to work from the outside this would obviate the additional costs of building the eastern wall. He acknowledges that the easement area has allowable uses such as for landscaping or carparking and that he did not treat the easement area as being totally devoid of some use but says it had some difficulties. In re-examination he says that to shift the proposed building closer to the western wall, there would be additional costs in building that wall because it would necessitate placing a crane on a neighbour's property which would be dearer and additionally to go on to the boundary it would be necessary to have fireproof walls, parapets and boxed gutters which would flood the building out occasionally and to have the same size building it would be necessary to go to the western boundary. Mr Muldoon gave notice that there could be another claim if it was contended that it was necessary to shift the building to the western boundary.
Evidence for the respondent was given by valuer, Mr K.G. Magee, who assesses the loss to the respondent in this matter in the sum of $28,622. In his written valuation he says -
"EFFECT OF EASEMENT:
The easement runs along the eastern boundary of the property at a width of 30 metres for an average distance of 242.5 metres.
The area covered by the easement represents a typical cross section of the entire property and consequently is subject to the same elevation constraints.
The principal restriction imposed by the easement is on building within the easement area. Uses such as access, standing and any others which do not threaten the integrity of the transmission line are permitted.
There are two steel towers erected on the property - one near the road frontage and the other towards the rear of the easement.
VALUATION CONSIDERATIONS:
The general low lying nature of the locality and the need to control inundation is critical to higher development of the subject and other properties in the area. The Brisbane City Council has prepared the River Mouth Development Plan which provides a future drainage network along the Bulimba Creek catchment. All applications for development are subject to the requirements of the plan.
In this particular case, the Council requires a 30 metre easement along the eastern boundary to be shared with adjoining property (Lot 15).
The 15 metre wide drainage easement will occupy 3787 square metres, or 52%, of the Q.E.C. easement over its eastern half.
It is understood that the Q.E.C. line design has allowed for the drainage easement east of the centre of the towers on the subject property by installing 11 metre deep piled footings.
Within an Industrial zone, a site coverage of 75% of total area is permitted. In this case, the area of the property is not limited by the building restriction equates to 77.5% leaving an area available for building not less than that prior to the resumption of the easement.
SALES EVIDENCE:
The attached Schedule marked "A" sets out transactions which took place near the date of resumption which have been considered as a basis for comparison.
From analysis, a rate of $100000/hectare has been adopted in application to the resumed area.
VALUATION:
Easement Area
(i) 3431 square metres @ 50% of $100000/ha $17155
(ii) 3787 square metres @ 25% of $100000/ha $ 9467 $26622
Allowance for Tower Sites
2 @ $1000 each $ 2000
$28622
Disturbance $ 2000
$30622
ADOPT $30500"
In his sales schedule he lists four sales - the sale at 94 Gosport Street which has been referred to previously in the evidence of Mr Corbett, a further sale in Gosport Street of an area of 2.675 hectares for $460,000 on 17th January, 1986, which shows $17.19 per square metre. His next sale is a 1.821 hectare parcel situated in North Road, Lindum, which sold on 25th February, 1987, for $157,550 ($8.65 per square metre). He says that it is higher than the subject land at the frontage and very low lying at the rear and it is overall inferior to the subject land. A parcel situated opposite the subject land in Lindum Road being Lot 5 on RP 136934 with an area of 6.402 hectares sold on 16th April, 1987, for $300,000. He says that this has a greater frontage to Lindum Road and is higher along the frontage than the subject but falls away at the rear and has about 25% affected by the drainage easement. This shows a rate of $4.68 per square metre overall but on adjustment shows $5.58 per square metre. Having regard to the sales evidence and particularly to the sale in North Road, he concludes that the subject land would, as an unencumbered parcel, sell for $322,000 ($10 per square metre). Mr Magee says that in his investigations he conferred with officers of the Brisbane City Council on general requirements of the Local Authority in the area particularly with the existence of the Regulation Line. He made enquiries of the Department of Customs in relation to the need for bond storage in Brisbane. He was advised that there were no specific specifications for construction as a prerequisite for bond storage and further that enquiries were few and far between concerning buildings for that use. He says that to his knowledge there are no bond storage warehouses of the size proposed by the claimant anywhere in the vicinity of the subject land. His enquiries from the Local Authority reveal that under the Brisbane Rivermouth Development Plan the Council would require as a condition for development of the land that the owner grant an easement to the Council along the eastern boundary for a width of 15 metres along the Regulation Line. His enquiries reveal that there are no difficulties as to compatibility of the transmission line and the drainage line in the same area. He does not agree with Mr Corbett that the subject easement makes the whole of the encumbered area of no value to the owner and that it should be fenced out. He believes that the rights taken under the easement are only partial rights and there is a substantial residual utility of the land. He says that his enquiries on the question of fire-rated walls reveal that this requirement is imposed on the boundary common with another property but when a building is removed from the boundary, no such requirement is imposed.
As to the location of the subject land, Mr Magee says that there has been no industrial activity in Lindum Road. The development generally has moved from the Murarrie area down along Lytton Road and to a certain extent into Gosport Street. While these particular areas are not fully developed, there has been substantial development which has occurred. He believes that before granting approval to build on the subject land, the Local Authority would require works on the frontage to Lindum Road which presently is a two-laned bitumen sealed road. These works would be necessary to provide access to the subject land by heavy vehicles such as semi-trailers. He does not see any deleterious effects from the towers other than that they deprive the claimant of the area utilised for the bases of the towers.
Mr Magee says that the easement will not prevent the claimant erecting a building as large as would be permissible, both in the "before" situation and "after" situation. Mr Magee says that he was aware of the sale of the adjoining lot referred to by Mr Corbett but having regard to the background of that sale, he had no regard to it. As to the use made by Mr Corbett of the settlement for an easement as a basis, he says that he would not use the settlement of a partial interest over a part of land as it is impossible to analyse the gross figure. He disagrees with Mr Corbett who says the land, the subject of the resumption, has no value after the taking of the easement and with his allowance of $10,000 for the towers. He says there is only a small area of land lost to the towers and that his allowance, mainly for aesthetic reasons, is adequate.
Mr Magee was cross-examined on the sales which he has referred to. He says that he did not make enquiries of the purchasers of the parcels in Gosport Street as to the extent of filling upon those parcels at the date of sale. He observed on one parcel some filling which appeared to have been recently placed upon the land but from his observation of the existing fencing, he formed the opinion that filling on the front of those allotments would have been in place before sale. He was criticised for commenting that one of the sales may have had an adjoining owner influence. He acknowledges that the sale is one allotment removed from the parcel originally owned. It is used in conjunction with that parcel for storage of steel fabrication. He adheres to his view that Gosport Street is a superior location compared to Lindum Road. His main basis for his value of the subject land, however, is the sale in North Road. He says that this is higher than the subject land at the frontage and, since purchase, the frontage land has been cut. He says that the rear of the sale is very low lying and that overall it is inferior to the subject land. He does not agree with the opinion expressed by Mr Corbett that it is far inferior. This sale shows $8.65 per square metre and he has adopted $10 per square metre to the subject land. He believes that North Road is also a superior location. His other sale is in Lindum Road opposite the subject land. It is larger in area and has a greater road frontage than the subject land, about 25% of the site is affected by the drainage easement along the rear of the allotment. The sales in Gosport Street are not affected by the Regulation Line.
He was cross-examined at length concerning the sale in Lindum Road which has a common boundary with the subject land. He was aware that it had been purchased by the resuming authority. He was led to believe that there was a hardship question in the negotiations and did not consider it was an appropriate basis for valuation. He does not have any particulars of how the amount was arrived at for the granting of the easement on the land in Lindum Road opposite the subject land. He does not consider it appropriate to use settlement figures as a basis of valuation as such figures may include allowances for legal and valuation fees, interest and other matters.
Evidence was given by Mr M.G. McLennan, who is the Regional Property Officer (Southern) for the respondent Commission. He says that he negotiated the purchase of the parcel adjoining the subject land which is owned by a Mrs Poukaroff. He gave the background leading up to the acquisition of this land. As has been stated originally the transmission line was to run from west to east across the Varitimos land. Negotiations were also taking place with another owner - Mayne Nickless - who owned the land on the other side of the road. An impasse was reached and negotiations could not continue. It was a matter of urgency to have the transmission line constructed to the Fisherman's Island Wharf Complex and there was no time to acquire easements. Mr Varitimos agreed that providing the line was run along the eastern boundary of his property where it is now sited he would agree to the work proceeding prior to the formal easement resumption. The Mayne Nickless' plans for its land, which had made it impossible for the transmission lines to go in a compatible location with the present location, changed and the land was sold which resulted in the new owner agreeing on the path the transmission line has now taken. There remained only one barrier to the work proceeding and this was to acquire the rights for the power line to cross the Poukaroff land. As he recalls the transaction, Mr and Mrs Poukaroff originally sought the sum of $215,000 for the whole property including improvements while the respondent's estimate was in the vicinity of $115,000 to $120,000. Mr Poukaroff died and negotiations continued with the widow and her solicitor. At Mr McLennan's suggestion, Mrs Poukaroff obtained the services of a private valuer and the matter was eventually negotiated with the purchase price reflecting an allowance for relocation expenses for the widow to leave the house property, valuation fees, legal fees, conference fees and something for the question of distress. In the result the figure was arrived at without attempting to break it up into separate components. He was of the opinion at the time that the amount paid was well above market value. The matter was disposed of with some urgency as the failure to acquire this property might have resulted in the lines being constructed on the original path across the Varitimos land. In cross-examination Mr McLennan said that while all that was required was an easement, in cases where hardship was involved the Commission has a policy of buying properties outright and putting them back on the market at a later date. He was taken through the figures which relying on memory might have been suggested for the various expenses of relocation but this does not take the matter further.
He was asked about the granting of the easement on the property owned by Alexander on the opposite side of the road. He says this was also a protracted negotiation and allowance was made for various expenses but he cannot recall all of the circumstances in the same way he recalls the Poukaroff negotiation because of the intervening death of Mr Poukaroff during those negotiations but the same sense of urgency was present for the Alexander land because of the proposed change of the route of the transmission line.
At this stage the hearing was by consent further adjourned to a date to be fixed so that Counsel for the dispossessed owner could arrange for experts to consider the reports of Mr Miller and Mr Baker. The parties were to arrange a date of hearing in October 1990 but no action was taken to bring the matter on. In due course the Court mentioned the matter at a callover and the hearing resumed on 7th May, 1991.
Although the case for the claimant had not been closed, by consent, the first witness called was Mr R.P. Baker, Engineer (Transmission Lines) with the respondent Commission. He has prepared a sketch of the subject land with the proposed building floor plan upon it. He is of opinion that there would be no difficulty in using cranes upon the easement area to construct the eastern wall in the method preferred by the claimant. The proposed building would be moved westward to commence on the western boundary of the easement area which is the closest a building could be constructed to the easement. In effect he has in his plan moved the building 15 metres westerly. He agrees in cross-examination that this would then bring the western wall of the proposed building directly onto the western boundary.
The case for the claimant then continued with evidence from Mr G.R. Cree, who is an independent consultant previously in the employ of Tiltcorp and who has been asked to consider the documents tendered in connection with this matter and after inspection of the site, to give his opinion on his experience in the erection of tilt-up type buildings which was the type intended to be used by Mr Varitimos. He has perused the evidence of Mr Varitimos, the report of Mr Baker and of Mr I.D. Miller who is to be called for the respondent. In summary, he discards the construction method proposed by Mr Varitimos as having been superseded by more economical methods and in his expert opinion the appropriate method of construction is by working internally on the site by putting down casting beds prior to constructing the floor slab, standing and propping the panels and then erecting the steel columns. He therefore rejects the extra costs claimed by Mr Varitimos. However, he says there is a significant costing imposition resulting from the need for the wall to retain the fill along the western boundary and for the fact that foundations for walls and columns on this section of wall would be eccentrally loaded and the necessity for internal box gutters in place of facia gutters. If the wall was to be erected 15 metres from the boundary as originally suggested in drawing 307-SK2, the wall could have been erected on the fill and centrally on the foundations. The fill would have been self supporting. In the result he estimates the extra construction costs of the works proposed by him at $118,053.
In reaching that conclusion he had regard to the opinion of three other experts who gave evidence in this hearing. Mr David Lloyd of Blain Johnson Pty Ltd, consulting engineers, on the implication of construction of a tilt-up warehouse development on the site with particular reference to the designs that would be necessary for two options of location, one with the wall located 15 metres from the property boundary and the other with the wall located on the boundary. He looked to Mr Albert E. Moore of Rainey Lincoln Widnells, construction costs consultants and quantity surveyors, for the costing of the works to arrive at his figure of $118,053.
Evidence was given by Mr Eric Brier, consulting engineer and arbitrator, who says that he was asked to report on various matters which had already been raised during the course of the hearing by the respondent concerning the construction of the building on this land. Some matters were not in his expertise and he sought the advice of Mr Lloyd and on his recommendation, Mr Cree. His report to the Court deals with the requirements of the Brisbane City Council as to drainage and filling and the requirements as to a retaining wall, car parking and site coverage. Time was spent in evidence in chief and cross examination as to the difficulties which might be encountered in manoeuvring large vehicles around the proposed building if it was sited on the western boundary. In the final result, none of this evidence is of assistance to me on the conclusion I have reached and I do not propose to discuss this evidence further.
Following completion of the evidence for the claimant, leave was granted to amend the claim again by firstly deleting the original claim for injurious affection of $38,000 and inserting in lieu thereof the sum of $118,053 which is the figure arrived at by Mr Cree. In the result the claim now stands at $254,024.50.
This having concluded the case for the claimant, Mr Jones resumed calling the remaining witnesses for the respondent. Mr Ian D. Miller, a director of I.D. Miller and Associates Pty Ltd, consulting engineers, gave evidence of his instructions to report on the feasibility of construction of an industrial warehouse of concrete tilt-up construction on the land in question and whether the power lines would cause additional costs in developing the site as an industrial warehouse. He is of the opinion that the presence of the power lines and towers would not affect construction of a building using tilt-up construction but in the final result on the conclusion I have reached, the pros and cons of the building methods to be adopted are academic and I do not propose to discuss them further.
The final witness called by the respondent was Mr Thomas B. Nugent, the managing director of the real estate firm of Richardson and Wrench. He is a registered valuer and for the last 28 years he has been involved in the sale and leasing of commercial and industrial property in Brisbane. He believes that the Hemmant-Lindum area is a secondary class area when it comes to development projects particularly of a speculative type and not as attractive as Rocklea, Coopers Plains, Acacia Ridge on the south side or Virginia and Strathpine on the north side of Brisbane. He says there has been no major warehouse construction in the subject area and there are a number of vacant lots in this locality. Adjoining the subject land is a 5 lot block with an area of 16.29 hectares with frontage to Lindum Road and Lytton Road. It was acquired by a container company with Richard Stacey as the principal in September 1989 for $1.1 million and it is now back on the market but he does not have a listing for it.
As to the proposed building on the subject land with about 16,500 square metres of actual warehouse space, he would have advised a client strongly against such a building because of the large area which is bigger than normal for the Brisbane market. It is off the main thoroughfare of Lytton Road/Gosport Road and he believes it would be imprudent to build this building without a pre-commitment by a major company to take a lease over a substantial period of time to guarantee a return on the money expended. He was cross-examined at length on the attraction of this area with the development of the Port of Brisbane at Fisherman's Island. He acknowledges that he has had no discussions with the claimant as to his intentions with the building and whether he has some lessee in mind in undertaking the development.
Finally, Mr Muldoon by leave recalled Mr Brier to give some evidence as to the requirements of the Local Authority on the treatment of filling by provision of a stable batter but the evidence does not assist me anymore than the original evidence given by the experts on this particular point.
At the conclusion of the evidence and at the request of Counsel for the parties, I have inspected the subject land and the surrounding areas including the sales which have been referred to in evidence. The inspection included walking along the length of the easement from Lindum Road to the point where the power lines turn at an angle before reaching the rear boundary. The land which Mr Nugent refers to as being available for sale was visible as we drove through the area.
Mr Jones in his address submits that the evidence shows that the proposed path of the transmission line easement was changed at the request of the claimant so that he could build a building making maximum use of the allotment. He, at conferences prior to the change of the path of the easement, made no suggestions that the altered path would place restrictions on the building. The first time the respondent was aware of any proposed claim was after the commencement of the hearing of the claim in Court. He makes submissions that there would be no demand for such a building and it would be imprudent for a person to undertake such a venture. On the valuation evidence he says that the proper approach is to determine what the value of the land was in the before resumption situation and what it was worth in the after situation to arrive at the proper compensation. He says that Mr Corbett has erred in applying a rate per square metre based on the figures he has taken from a settlement without investigating the components which made up that total figure. He submits the only reliable evidence of value before the Court is the valuation of Mr Magee.
In relation to payment of interest on the award of compensation, it is his submission that the land was resumed on 13th June, 1987, and despite requests for the lodgment of a claim for compensation it required action by the Resuming Authority to obtain an order of the Court under Section 29(1) of the Acquisition of Land Act for the entry of appearance which occurred on 2nd March, 1989. Interest should flow from the time the matter was referred to the Court by the Commissioner. That interest on legal and valuation fees and similar payments should only be ordered from the date of payment of those fees. It is his submission that on the authorities now known to him, the claim for the valuation undertaken by Mr Corbett, although Mr Jones had first agreed to the payment of that fee, cannot in law be allowed as it was incurred after the date of lodgment of the claim in the Court.
Mr Muldoon directs my attention to Section 20 of the Acquisition of Land Act which reads:
"In assessing the compensation to be paid, regard shall in every case be had not only to the value of the land taken but also to the damage, if any, caused by either or both of the following, namely -
(a)the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. "
He says an easement is exactly the same as a physical taking; that is, the slicing off of the land. It is not really injurious affection in the sense that there is some activity carried on on the land that is damaging the land: it is the loss of a value of that land due to severance. The difficulty here has been that the valuation method has been the piecemeal method and not the before and after valuation. There are no sales of land encumbered by an easement. He stresses the losses incurred by the claimant that if he maintains his wish to build the same size building in the same shape, he must move it to the western boundary with the additional costs involved, otherwise he could reduce the size of the building and suffer loss of rents and profits which would be difficult to calculate. He says that a prudent prospective purchaser of this land would take into account all the problems which have been raised during the hearing and would reduce the price that he would be prepared to pay for the land. On the question of severance, he directs my attention to quotations from text books. The law affecting the valuation of land in Australia by Alan A. Hyam, page 168, and to Land Valuation and Compensation in Australia by Rost and Collins, First Edition, 503 and 505, on the question of transmission line easements. It is his submission that the approach by the claimant is correct in keeping the same building and costing the difference because of the change of location upon the land and this is simply an increase in the cost due to what has been done to the land.
He submits that while Mr Corbett's valuation approach was perhaps unusual in looking at the sale to the Resuming Authority and a calculation involving an easement, Mr Corbett has endeavoured to analyse the situation and the Resuming Authority could have produced in Court details of how the settlements have been arrived at. He speaks on the provision of a security fence suggested by Mr Corbett as being a reasonable conclusion for security purposes for the building and with that fence in place it severs part of his land. He criticises the sales which have been used by Mr Magee, particularly the sales in Gosport Street, where Mr Magee was uncertain whether they were sold in a filled or unfilled state. He submits that in the absence of evidence to the contrary I should make the assumption that these sites were unfilled.
Mr Muldoon spoke on the percentage loss as discussed in Mr Magee's valuation and refers to cases where large percentages have been taken to represent loss due to an easement by an electricity authority. He directs my attention to Isbel v. The Southern Electric Authority of Queensland (1977) 4 Q.L.C.R. 59 (L.C.). He says that each case should be determined on its own facts and if it is necessary to seal off the easement area with a security fence then little value to the dispossessed owner can be applied to the land in the easement. He submits that interest should run from the date of resumption and there is no reason for such interest to be discounted. He makes no submissions as to the appropriate commencing date for interest to be paid on the items of disturbance.
I propose to summarise the evidence before me. Mr Varitimos acquired the 3.22 hectare parcel of land now encumbered by the easement in 1984. It is common ground that the land is low-lying and would require substantial filling before development. At the time of purchase he was satisfied that the land then zoned Harbour Industry would be rezoned to General Industry. It was so rezoned in 1987. It was his intention to fill the site and erect a warehouse for bulk storage upon the land. He has tendered to the Court a copy of a plan drawn by a draftsman in August 1984. In his written statement Mr Varitimos makes reference to plans of the general layout and engineering works which were done by him. Because of his long experience in the building industry, he is capable of designing buildings of this type. These plans were not tendered to the Court.
In October 1985, he received a notice of intention to resume an easement for electrical works purposes over the land. The path of this easement bisected the subject land and would have prevented him utilising the land for his building as envisaged. Following representations on his behalf, the path of the easement was altered to run along the eastern boundary of the subject land with a width of 30 metres and a depth of 262 metres which included the regulation line referred to previously in this judgment. He perceived that he would have difficulties in erecting the building in the manner in which he proposed because of the existence of the overhead power lines and in his written statement says he envisaged many other adverse effects to the land which in his view rendered the allotment virtually useless. In the result he decided to sell the allotment and instructed Ray White Tingalpa to sell the property without placing any fixed price upon it. There was some interest in the allotment and some offers were put to him with the best offer being $250,000. His agent advised that there was quite a deal of land available in the area and most of that land did not have the difficulties faced with developing his allotment. In the final result, he abandoned any intention of proceeding with the building he had first envisaged.
On the evidence I am satisfied that in conferences over a period from June 1987 until early 1989 no reference was made in negotiations between the parties attempting to settle the claim for compensation for any amount for severance or injurious affection and it was not until after the commencement of the hearing that the claim was amended to include the item of $38,000 for injurious affection and this was amended much later in time to the figure of $118,053. A great deal of time and effort has been expended by the parties in this hearing on the problems which might arise for the claimant if he had wished to proceed with the construction of a building of the dimensions set forth in the sketch plan but I do not find this evidence of any assistance here. Mr Varitimos has said that he had assessed the difficulties himself and had walked away from his building and placed the land on the market for sale. His hopes have no doubt been disappointed but disappointed hopes are not compensable unless such hopes before their nullification by the resumption would have in fact a present monetary value - Ray v. The Commissioner of Main Roads (1938/39) 17 C.L.L.R. 171 L.C.
Mr Jones refers me to the judgment of the Privy Council in Pastoral Finance Association Ltd v. The Minister (1914) A.C. 1083 - (1915) State Reports NSW 535. In that matter, the facts were that the plaintiffs carried on a wool and cold storage business at Kirribilli Point on the North Shore of Sydney Harbour. They purchased a vacant block of land at Jones Bay, Piermont, on the Southern Shore which they intended to use in conjunction with their Kirribilli store to provide for the extension and more economical working of their business. At the time of resumption, plans and estimates had been prepared for building upon this site but the land was never in fact used by the plaintiffs in connection with their business. In the action to recover compensation for the Jones Bay land, evidence was given by the plaintiffs that no other site equally suitable for their business was available and that large savings and increased profits would have resulted from the intended use of the land. In delivering the judgment of their Lordships, Lord Moulton said:
"That which the plaintiff was entitled to receive was compensation not for the business profits or savings which he expected to make from the use of the land, but for the value of the land to him. No doubt the suitability of the land for the purposes of his special business affected the value of the land to him, and the prospective savings and additional profits which it could be shown would probably attend the use of the land in his business furnished material for estimating what was the real value of the land to him. But that is a very different thing from saying that he was entitled to have the capitalised value of these savings and additional profits added to the market value of the land in estimating his compensation. He was only entitled to have them taken into consideration so far as they might fairly be said to increase the value of the land. Probably the most practical form in which the matter can be put is that he was entitled to that which a prudent man in his position would have been willing to give for the land sooner than fail to obtain it. Now it is evident that no man would pay for land in addition to its market value the capitalised value of the savings and additional profits which he would hope to make by the use of it. He would no doubt reckon out these savings and additional profits as indicating the elements of value of the land to him, and they would guide him in arriving at the price which he would be willing to pay for the land, but certainly if he were a business man that price would not be calculated by adding the capitalised savings and additional profits to the market value. "
A dispossessed owner is entitled to market value of the land resumed or its value to him whichever is the greater. In The Commonwealth v. Reeve (1948/49) 78 C.L.R. 410 (H.C.), Latham C.J. at page 418 said:
"The value of land to the owner is what he can get for it. He can never get for it more than other people would give for it. But what other people will give for it is not unaffected by what the owner is prepared to take for it, and if the sale of the land would involve him in costs and expenses that fact may be an element which would affect the amount which he is willing to take. In some cases, however, such a fact would have no significance at all in relation to value; as, for example, where other suitable land was readily available which any person could buy. "
I am of opinion that the amount of compensation payable in respect of either severance or injurious affection is the amount by which the value of the retained land is depreciated by such severance or injurious affection resulting from the use to which the land taken has been put. This can best be found by arriving at the difference between the value of the land retained, assuming no land has been taken and its value after taking the resumption into account.
In Realty Corporation Ltd v. The Commissioner for Main Roads (1938-41) L.G.R. (N.S.W.) 204, Roper J. was considering a claim for compensation following resumption of a strip of land for the purpose of widening a road. In his judgment at page 205, he said:
"The second matter to which the evidence was directed is the increase in cost of building on the lots because of the alteration in the practicable building line. This was put at between Pounds 60 and Pounds 70 by the plaintiff's witnesses, and at Pounds 14 and 10 shillings by a witness for the defendant. This matter does not in my opinion give rise to a separate head of compensation. The land in question is suitable for the erection of a cottage or cottages, and that is the natural purpose for which it would normally be acquired. Any purchaser would take into account the cost of building when buying the land, and any difference in the respective costs of building on the original lots on the one hand and on the residues on the other hand would be reflected in the differences in the market values of the original lots and of the residues. The relevance of the evidence in my opinion is that it assists as a guide in arriving at those market values; but it cannot furnish an independent claim for compensation in addition to that furnished by the difference in those market values. "
And later,
"It is to my mind clearly established that the profits which could have been made from the use of land are not to be added to the value of the land to arrive at the compensation payable for the resumption of the land: Pastoral Finance Association v. The Minister (1914) A.C. 1083; 15 S.R. 535). The profit in question here flows from the undertaking of building a cottage, an undertaking which had not started when the resumption took place. There is nothing before me to show that the plaintiff company has not available to it at market value as much land in the vicinity as it could profitably use for the erection of cottages, and the continued possibility of erecting the cottages on this land does not appear to me to be necessary to enable the plaintiff to earn such profits. In other words, this land appears to me to have had no peculiar or special suitability for the purpose of building cottages which is not possessed by almost all of the large area of vacant land in the immediate neighbourhood. In my opinion, therefore, this claim cannot add to the measure of compensation arrived at by taking the difference in values between the original lots and the residues. "
I find that the claim for additional costs associated with the construction
of the proposed warehouse is not sustainable.
In the subject case I find that there were at the date of resumption and since that date a number of vacant allotments in this area, some of which were unaffected by the transmission line easement upon which the dispossessed owner could have erected the building contemplated here and it may have been appropriate to undertake a valuation exercise on a before and after method to arrive at the measure of damage suffered.
I turn to the valuation exercise undertaken by Mr Corbett on behalf of the claimant. He has been able to peruse a valuation prepared by valuers for the respondent in respect of some other parcel of land within the easement area and concludes that in reaching a settlement with Mr Alexander in sale 3, the amount paid represents 40 percent of the value of the 1899 square metres and by a strange method which is set forth in this judgment, he arrives at a value of $17.18 per square metre as the amount paid to Alexander. He then applies that to the subject land to arrive at a figure of $123,046. He adds an arbitrary $10,000 for the effects of the towers and access road upon the land to arrive at his final figure of $133,000. He also gains some comfort from the sale to Poukaroff of the parcel adjoining the subject land. He accepts the purchase price as a rate per square metre for the subject land. The evidence of Mr McLennan establishes that this was far from the correct position and a number of special payments were included in the overall purchase price. While settlements made by the Resuming Authority for other parcels of land may be a guide to the appropriate award of compensation in a particular case, such settlements are of little value unless all of the figures are available to show what amount in the settlement was actually paid for land. As Mr McLennan has indicated, there were many amounts included in the overall figure paid to Mrs Poukaroff in addition to the amount which may have been paid for land. In the result I find that the valuation exercise advanced by Mr Corbett is of no assistance to me in determining compensation in this case.
The only valuation evidence I thus have is that advanced by Mr Magee. In cross-examination he was questioned at length concerning the sales in Gosport Street and particularly as to his knowledge whether the sale lands were filled or unfilled at the date of sale. Mr Magee is uncertain on this point and Counsel for the claimant says that I should therefore presume that the lands were unfilled at the date of sale. I can make no such presumption but merely put these sales aside as not to be used as a basis for the valuation. In fact Mr Magee really relies on the sales in North Road and Lindum Road in arriving at his value of $10 per square metre for the subject land. I am satisfied that the sales form a sound basis for his conclusion. He has adopted a rate of 50 percent as a depreciation in value of the resumed land outside the area encompassed by the regulation line which is 15 metres wide. As this would be lost to an easement in favour of the Local Authority for drainage before any building would be permitted upon the subject land, he reduces the loss due to this easement to 25%. He has made an allowance of $2,000 for the small area lost with the towers and says that his allowance is adequate mainly for asthetic reasons. I accept his assessment and will determine compensation for loss to the owner, other than disturbance, at $28,622.
Mr Corbett in his valuation made an allowance for fencing out the whole of the easement area for security purposes on the grounds that under the terms of the easement access must be made available to the respondent Commission at all times which would mean that a key to the gate would have to be provided to the Commission and he feels that for security it would be necessary to totally fence out the easement area. No such suggestion was forthcoming from Mr Varitimos nor was any specific claim made. The evidence establishes that the owner can use the easement area for parking, storage and other purposes and would be imprudent to undertake the expense suggested by Mr Corbett.
I turn to consider the claims for disturbance. The first is for valuation fees of $1,500. This fee was incurred after the date of lodgment of the claim for compensation in the Court and it is agreed that as it was incurred after lodgment, it is a cost in the action and is not payable under a claim for disturbance. See Merivale Motel Investments Pty Ltd v. Brisbane Exposition and South Bank Redevelopment Authority (1984/85) 10 Q.L.C.R. 175 at p. 205 et seq. The respondent has accepted the claim for $755.50 for legal fees incurred up to the date of lodgment of the claim in the Court and the sum of $670 paid for the cost of the drawing of the plan thrown away by reason of the resumption. This plan was prepared prior to resumption and paid for prior to that date. However, there is no evidence before the Court as to the date of payment of the legal fees of $755.50. A practice has developed over the years of arriving at a total sum for compensation, including the items of disturbance, and awarding interest on that total sum from the date of resumption unless some special factor arises, such as the dispossessed owner remaining in possession or for other sound reasons. This resumption occurred on 13th June, 1987, and an award of interest from the date of resumption could result in payment of interest on an amount for some years which in fact had not been paid until much later in time. I sought submissions on the matter and Counsel for the respondent submitted that interest should not be awarded on an amount which has not been paid and such interest should only accrue from the date on which the payment was actually made. There were no submissions on this point from Counsel for the claimant. The submission is well founded and interest on that item will flow from the date of payment. It would in future cases assist the Court if it is advised of the dates of payments of such fees to simplify the wording of the final order.
Counsel for the respondent also submits that there has been a long delay in this matter which necessitated the respondent obtaining an Order for the claimant to enter an appearance by lodging a claim for compensation in the Court. It is his submission that the claimant has remained in effective control of all of the land since the date of resumption and has material stored upon part of the easement area and in the circumstances, interest should flow from the time when the request was made by the respondent to the Court for an Order for the claimant to enter an appearance. Council for the claimant submits that interest on the award of compensation should flow from the date of resumption.
From the evidence it would appear that the Resuming Authority has had the use of the easement area since the date of resumption and has erected pylons and transmission line. In effect it has had the use of the land for its purposes since the time of resumption. The fact that the dispossessed owner has also been able to use the easement area is his right in accordance with the provisions of the easement and is only incidental to the primary use for which the easement was taken. While there has been a long delay in this matter being brought before the Court it was within the rights of the respondent to attempt to bring the matter to finalisation at an earlier date and make appropriate applications for non payment of interest when unnecessary delay occurs but in this case I find no grounds for awarding interest from other than the date of resumption.
In the result, I determine compensation payable by the respondent to the claimant under all heads of claim in the sum of Thirty thousand and forty-eight dollars ($30,048). I order the respondent to pay to the claimant interest on the sum of $29,292 at the rate of 13 percent per annum commencing on 13th June, 1987, until the date of payment by the claimant of the legal fees of $756 which have been allowed and thereafter on the sum of $30,048 up to and including the day immediately preceding the date on which payment is made.
(D.J. Barry)
President of the Land CourtLAND COURT,
BRISBANE
Re: Claim for Compensation (A89-10)
Anastasis Varitimos
v.
Queensland Electricity Commission
DECISION ON APPLICATION FOR AN ORDER FOR COSTS
This twentieth day of June, 1991
Section 27(1) of the Acquisition of Land Act provides that the costs of and incidental to the hearing and determination of a claim for compensation shall be in the discretion of the Court. Sub-section (2) of that section restricts the discretion of the Court dependant on the amount of the award. Here the amount of compensation as determined is the amount of the valuation finally put in evidence by the respondent who has been wholly successful in the matter and costs should follow the event. There are no grounds for me to exercise any discretion in the matter and not make an award for costs. It is submitted that costs should not be allowed in respect of the first day of the hearing on 4th December, 1989, where time was lost because the written valuation evidence of the respondent required some amendments resulting in a very limited time for hearing. In the circumstances, while the hearing occupied six days, I limit the award of costs to a hearing of five days.
Accordingly, it is ordered in the exercise of the Court's discretionary powers that the claimant pay the respondent's costs of and incidental to this action. The amount of such costs shall be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act 1962-1989.
President of the Land Court
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